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United States v. Jewell, 94-2080 (1995)

Court: Court of Appeals for the First Circuit Number: 94-2080 Visitors: 7
Filed: Jul. 21, 1995
Latest Update: Mar. 02, 2020
Summary: purchased crack cocaine from Jewell;States v. Jewell, Cr.U.S. at 238. United States v. Jordan, 999 F.2d 11, 13 (1st Cir.executing their warrant.Jewell's apartment. Judge Freedman recalled the case from Magistrate, Judge Ponsor on March 14, 1994, and reassigned it to Judge, Ponsor on March 17, 1994.
USCA1 Opinion









UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 94-2080

UNITED STATES,

Appellee,

v.

JOHN M. JEWELL,

Defendant, Appellant.


____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge] ___________________

____________________

Before

Torruella, Chief Judge, ___________

Campbell, Senior Circuit Judge, and ____________________

Cyr, Circuit Judge. _____________

____________________

Stuart P. Feldman with whom Thomas J. Dougherty was on brief for __________________ ____________________
appellant.
Andrew Levchuk, Assistant U.S. Attorney, with whom Donald K. _______________ __________
Stern, United States Attorney, was on brief for appellee. _____


____________________

July 21, 1995
____________________




















CAMPBELL, Senior Circuit Judge. Defendant John M. ____________________

Jewell was tried and convicted by a jury in federal district

court on one count of being a felon in possession of a

firearm, in violation of 18 U.S.C. 922(g)(1), and one count

of receiving a stolen firearm, in violation of 18 U.S.C.

922(j). On appeal he argues that the district court erred in

denying his motion to suppress all fruits of the search at

his apartment at 162 Linden Street on the grounds that the

affidavit supporting the application for the search warrant

failed to establish probable cause and failed to provide an

adequate basis for the issuance of a "no-knock" warrant.1

He also argues that he was denied procedural due process

under the Federal Magistrate Act of 1979, 28 U.S.C. 636.

We affirm.

The evidence at trial, the sufficiency of which is

not disputed, showed that on November 22, 1992, officers of

the Pittsfield Police Department executed a state "no-knock"

search warrant on the residence of Jewell and his girlfriend,

Brandee Richards, at the first floor of 162 Linden Street,

Pittsfield. Found and seized during the search were crack

cocaine, cocaine processing paraphernalia, marijuana, $473 in

cash, and a stolen Ruger .22 caliber revolver, S/N 191220.

____________________

1. Jewell also made a motion to suppress certain statements
made by him at his apartment and later at the police station
on the ground that he was not properly advised of his rights
under Miranda. Jewell has not appealed from the denial of _______
that motion.

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Jewell and Richards were arrested and processed at the

Pittsfield Police Station.

Jewell challenges the district court's denial of

his motion to suppress the physical evidence seized from his

apartment on the grounds that the search warrant was not

supported by probable cause, as required by U.S. Const.

amend. IV. In particular, he asserts that the affidavit

supporting the application for the search warrant was

deficient. The search warrant was issued by Massachusetts

Clerk-Magistrate Leo Evans upon the affidavit of Detective

Granger. The affidavit stated, in sum: that police received

an anonymous tip on October 6, 1992 that an African-American

male named "Radar" was engaged in a drug transaction in the

vicinity of 168 Linden Street; that information was received

the following week from a "concerned citizen" in the

neighborhood that Radar was distributing drugs from the pink

house with maroon trim in the 1st floor apartment on the

right side; that subsequent surveillance by Pittsfield Police

Investigator Decker of Radar's residence confirmed that Radar

was an individual known to Decker as John Jewell, and that

Jewell was living in the first floor right apartment of 162

Linden Street with Brandee Richards, and also confirmed that

individuals entered the apartment for short periods of time

and left; that a reliable confidential informant (CI-3), a

longtime resident of Pittsfield who had previously given



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information leading to drug arrests and convictions, advised

that Jewell was living at 162 Linden Street and appeared to

be dealing cocaine out of that location, and that CI-3

observed Jewell exchanging money with individuals in return

for small, light-colored objects, and reported substantial

traffic in and out of the apartment at all hours of the day

and night, with most visitors entering the apartment for

short periods of time and leaving (which behavior was, in

Detective Granger's view, consistent with narcotics

distribution); that a second reliable confidential informant

(C1), who had previously provided information leading to the

arrest and indictment of two individuals, advised that it had

purchased crack cocaine from Jewell; and finally, that one

William Shepard, an informant of untested veracity, visited

the Pittsfield Police Department on November 21, 1992, and

provided a sworn statement to the effect that he had seen

crack cocaine in Jewell's apartment at 162 Linden Street that

afternoon, and that Jewell had stolen various items of

clothing and other personal property from him, and that he

had smoked crack cocaine obtained from Jewell some time

before coming to the police station.

The district court determined that there was

sufficient probable cause stated on the face of the

affidavit, finding that "[t]he affidavit, and particularly

the information provided by William Shepard, is more than



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adequate to provide probable cause for the search." United ______

States v. Jewell, Cr. No. 93-30036 (D. Mass. April 28, 1994) ______ ______

(memorandum andorder denying defendant'smotions to suppress).

We review the district court's decision to uphold

the warrant for clear error only. United States v. Garcia, _____________ ______

983 F.2d 1160, 1167 (1st Cir. 1993); United States v. _____________

Nocella, 849 F.2d 33, 39 (1st Cir. 1988). In evaluating the _______

sufficiency of an affidavit, we afford great deference to a

magistrate's determination of probable cause. Illinois v. ________

Gates, 462 U.S. 213, 236 (1983) (citing Spinelli v. United _____ ________ ______

States, 393 U.S. 410, 419 (1969)). ______

We apply a "totality of the circumstances" standard

in determining the sufficiency of an affidavit. Gates, 462 _____

U.S. at 238. The affidavit is to be interpreted in a common-

sense rather than a hypothetical or hypertechnical manner.

See id.; United States v. Ventresca, 380 U.S. 102, 109 _______ ______________ _________

(1965); United States v. Cochrane, 896 F.2d 635, 637 (1st _____________ ________

Cir.), cert. denied, 496 U.S. 929 (1990). ____________

Jewell argues that the fact that no warrant was

obtained in mid-October shows that the police lacked probable

cause at that time, and that Shepard's statement, he being an

admitted drug user and high at the time it was made, was not

enough to make up for the deficiency. There is no merit to

this contention. Appellant would have us engage in a

piecemeal examination of the affidavit, and base our review



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of the clerk-magistrate's action on "'bits and pieces of

information in isolation.'" See Cochrane, 896 F.2d at 637 ___ ________

(quoting Massachusetts v. Upton, 466 U.S. 727, 732 (1984)). _____________ _____

Viewing the affidavit as a whole, as it should be, there was

more than adequate information presented to the clerk-

magistrate from which to find probable cause that drugs were

present at Jewell's apartment.

Probable cause means simply that the totality of

the circumstances gives rise to a "fair probability" that a

search of the target premises will uncover evidence of a

crime. United States v. Jordan, 999 F.2d 11, 13 (1st Cir. _____________ ______

1993) (citations omitted). In this case, such a fair

probability was shown by the reports of two demonstrably

reliable confidential informants that Jewell was trafficking

in drugs; Shepard's statement that he had observed cocaine in

Jewell's apartment on the day before the search warrant was

issued; the statements of the concerned citizen; and finally,

the trained observations of Investigator Decker. Even

discounting Shepard's reliability, the information in the

affidavit still provides probable cause to believe that an

ongoing drug trafficking operation existed at 162 Linden

Street. See United States v. Hershenow, 680 F.2d 847, 853 ___ _____________ _________

(1st Cir. 1982) (citation omitted) ("[W]here the information

points to illegal activity of a continuous nature, the

passage of several months between the observations in the



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affidavit and the issuance of the warrant will not render the

information stale.").

Appellant also argues that the district court

should have excluded the physical evidence seized pursuant to

the search because the clerk-magistrate lacked probable cause

to authorize service of the warrant without knocking. The

government correctly responds that the Federal Constitution

does not require state authorities, before they issue a "no-

knock" warrant, to have probable cause to believe that entry

without knocking is required. All that is required is that

it be reasonable under the circumstances to allow an

unannounced entry. See Wilson v. Arkansas, 115 S. Ct. 1914, ___ ______ ________

1918 (1995) (holding that in some circumstances an officer's

unannounced entry into a home might be unreasonable under the ____________

Fourth Amendment) (emphasis added). The Court in Wilson left ______

to the lower courts "the task of determining the

circumstances under which an unannounced entry is reasonable

under the Fourth Amendment." Id. at 1919. ___

The affidavit here stated that Detective Granger

had personal knowledge of Jewell's record of convictions for

violent offenses, and that he had personal knowledge that

Jewell possessed a grey pit bull dog that he kept at the

apartment at 162 Linden Street. The district court found

that "the affiant's personal knowledge of the defendant's

potentially violent tendencies and of the existence of a



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pitbull on the premises was, again, more than adequate to

justify a 'no-knock' warrant." United States v. Jewell, Cr. _____________ ______

No. 93-30036 (D. Mass. April 28, 1994) (memorandum and order

denying defendant's motions to suppress).

In Wilson, the Court made clear that not "every ______

entry must be preceded by an announcement," Wilson, 115 S.Ct. ______

at 1918, and noted the common-law rule that "the presumption

in favor of announcement would yield under circumstances

presenting a threat of physical violence." Id. at 1918- ___

19.2 We must therefore determine whether the affidavit

presented in support of the application for a "no-knock"

warrant reasonably described "circumstances presenting a

threat of physical violence."

Like the district court, we hold that it did.

Detective Granger stated that he had personal knowledge of

the existence of a pit bull dog in the apartment to be

searched. The Fourth Amendment did not require the police to

risk having to fight off a forewarned attack dog before


____________________

2. In a footnote, 115 S. Ct. at 1918 n. 3, the Court cited
Sabbath v. United States, 391 U.S. 585 (1968), for the _______ _____________
proposition that both the common-law rule of announcement and
entry and its exceptions were codified in the federal "knock __________________
and announce" statute, 18 U.S.C. 3109. Appellant suggests
that service of the warrant in this case did not meet the
requirements of that statute. However, the threat of physical
violence is an established common-law exception to the "knock
and announce" principle and, as such, is recognized in
3109. Section 3109, moreover, does not apply to state
investigations by state officers. United States v. Andrus, ______________ ______
775 F.2d 825, 844 (7th Cir. 1985).

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executing their warrant. See, e.g., United States v. __________ ______________

Buckley, 4 F.3d 552, 557 (7th Cir. 1993) (presence of pit _______

bull and firearms sufficient to justify "no-knock" entry).

That, and the fact of Jewell's extensive history of arrest

and conviction for violent crimes, made concern for the

physical safety of the officers executing the search warrant

entirely reasonable. The "no-knock" provision was justified

in this instance.

We affirm the denial of the motion to suppress the

evidence seized pursuant to the state search warrant from

Jewell's apartment. We have carefully considered Jewell's

other arguments and find them to be without merit.3 The

judgment of the district court is therefore

Affirmed. _________



____________________

3. In particular, we find no merit in Jewell's contention
that he was denied procedural due process when District Judge
Ponsor, who had presided over pre-trial proceedings
concerning Jewell's motions to suppress as a United States
magistrate judge, denied those motions shortly after his
appointment to the district court. While the Federal
Magistrate Act provides that magistrate judges "may" be
designated to conduct hearings and submit "proposed findings
of fact and recommendations" on suppression motions, 28
U.S.C. 636(b)(1)(A),(B), the district court judge who made
the assignment to the magistrate judge retains primary
jurisdiction over the motion to suppress. In re Worksite _______________
Inspection of Quality Products, 592 F.2d 611, 613 (1st Cir. _______________________________
1979). Judge Freedman recalled the case from Magistrate
Judge Ponsor on March 14, 1994, and reassigned it to Judge
Ponsor on March 17, 1994. Judge Freedman, in transferring
the case, and Judge Ponsor, in denying the motion to
suppress, were merely acting pursuant to their powers as
district judges.

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Source:  CourtListener

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